Leave Sovereignty Out of it
| Date | 01 December 2011 |
| Published date | 01 December 2011 |
| DOI | 10.1177/203228441100200401 |
| Author | Scott Crosby |
| Subject Matter | Editorial |
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 351
EDITORIAL
LEAVE SOVEREIGNTY OUT OF IT
S C
In the very rst issue of the Journal of European Cr iminal Law in 2006 I wrote that
although in a ll relevant respects EU law is a “source of national crim inal law” and that
“European crimi nal law has (…) been judicially recogni sed as a eld of law in its own
rightt his “sits uncomfortably with Member State notions that criminal law is their
exclusive and sovereign domain”.1 e purpose of that short article was to point out
that supranational cri minal law was necessary a nd to demonstrate that opposition to
the internationalis ation or, in the EU, to the Europeaniz ation, of criminal law on the
basis of national sovereignty (whatever that meant in a g iven context) was misguided.
e term “sovereignty” is oen used loosely, of course, and where it is us ed without
denition by States it is usually a diplomatic way of expressing outright disapproval
on subjective grounds. e phras e “this would intrude on our sovereignty ” is therefore
really a euphemism for “we don’t like this per se ”.2
In the EU context there are rea lly only three criteria for assessi ng the acceptability
of a proposed criminal l aw rule:
i) e competence of the EU to legislate,
ii) e qual ity of the norm, in terms of its utility a nd its practical eects, and
iii) Its compatibility w ith human rights standards.
A valid crimi nal law rule of the EU is not a threat to sovereignty i n the sense of a threat
to national authority. It may even and in many cases wou ld enhance the authority of
national law enforcement agencies. Nor is it a threat to sovereignty in t he sense of a
loss of competence to the supranational organisation, because a prior transfer of
competence must have been made before the norm could have been val idly adopted in
the rst place. In the ab sence of a valid legal basis the norm would be struck dow n by
the courts “for lack of competence”. Finally, the adoption of EU criminal law norms
or, to put it perhaps more provocatively, the harmonisat ion of criminal law according
to the above criteria, does not th reaten the existence of the State.
I say this by way of suggesting to those interested in the topic of EU crim inal law
harmonisation to consult Professor A nne Weyembergh’s detailed and profound study
on the subject, which has only recent ly come into my possession: ‘L’harmonisation des
1 Crosby, “European Cri minal Law: Some Int roductory Reection s”, JECL, Volume 1, Issue 1, 11–15.
2 Cryer, “Internationa l Criminal Law vs S tate Sovereignty: Anot her Round?”, EJIL (2005) Volume 16
no.5, 979–1000, at 981.
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